2013 (12) TMI 205 - AT - Service Tax

Waiver of pre deposit - Stay of recovery - Denial of Cenvat credit - Input service credit - Held that - impugned demand is not supported by any legal provision. In each case, the amount of duty is found to have been estimated on the basis of a formula based on turnover of manufacturing activity and trading activity. It has been assumed that 40% of the Cenvat credit on common input services has been utilized for trading activity. The demand is based on this formula. The DR has not shown us any supporting legal provision. Hence, prima facie, there is substance in the submission of the learned counsel that the demand of duty is bad for want of machinery provision for recovery - Stay granted.

Summary

Issues:
- Waiver of pre-deposit and stay of recovery in relation to duty and penalty amounts demanded by lower authorities.
- Denial of Cenvat credit on certain services used for manufacturing and trading activities.
- Apportionment of common input services between manufacturing and trading activities.
- Eligibility of availing Cenvat credit on common input services.
- Time-bar plea against a part of the demand in one of the appeals.

Analysis:

The judgment revolves around applications seeking waiver of pre-deposit and stay of recovery concerning duty and penalty amounts demanded by lower authorities due to the denial of Cenvat credit on specific services used for both manufacturing and trading activities during the material period. The appellant argued that services like telephone services, management consultancy services, renting of immovable property, and professional services were utilized for both manufacturing and trading activities. The appellant contended that apportioning the common input service between these activities was not feasible, thus justifying the inability to maintain separate accounts. Reference was made to a previous Tribunal decision and an explanation added to the Cenvat Credit Rules, 2004, to support the claim for availing Cenvat credit on common input services.

The Tribunal considered the submissions and found that the impugned demand lacked legal support. The duty amount was estimated based on a formula using the turnover of manufacturing and trading activities, assuming 40% of the Cenvat credit on common input services was used for trading. However, no legal provision was presented by the DR to justify this approach. Consequently, the Tribunal held that the demand of duty was deficient due to the absence of a statutory mechanism for recovery, granting waiver of pre-deposit and stay of recovery for the amounts adjudged against the appellant. The judgment highlights the importance of legal provisions in supporting demands and the necessity for a clear recovery mechanism in such cases.

In conclusion, the judgment emphasizes the need for a legal basis for demands made by authorities and the requirement for a statutory framework for recovery. It underscores the significance of proper documentation and compliance with legal provisions in matters concerning Cenvat credit and the utilization of common input services for multiple activities. The decision serves as a reminder of the importance of legal clarity and adherence to statutory requirements in tax-related disputes.